28 February 2024
The Future of Legal Struggles
The year 2023 was not a good year for the rights of asylum seekers. The decision about a new legal framework for the Common European Asylum System (CEAS) was described as a "historic moment" (Ylva Johansson), but in fact works as a programme of disenfranchisement. If the pursuit of progressive positions are blocked in the political arena, actors shift their strategies to the judicial field. Even before the summer of migration 2015, successful legal struggles had a significant impact on European migration policy. Push-backs on the high sea were prohibited and transfers of asylum seekers to inhumane conditions under the Dublin system were prevented. The draft for the new CEAS are characterised by attempts to circumvent the consequences of these judgements. In this blogpost, I will discuss what the future of legal struggles within the framework of the new CEAS might look like. Continue reading >>
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27 February 2024
Understanding European Border Management
This contribution highlights how European border management disrupts conventional state-centric understandings thereof, while fostering impunity for human rights violations in its enforcement. EU borders are increasingly controlled in a supranational fashion by a panoply of different actors with different legal mandates and obligations, expanding within and beyond the physical frontiers of Member States. In addition, new technologies and the political turn to the logic of ‘crisis governance’ are contributing to changing the traditional practice of border controls, with a multiplicy of actors being involved in a complex dynamic of securitization. The actors, practices and the legal framework governing European border controls are rapidly changing; yet underlying linear and territorial assumptions and liability regimes remain unchanged perpetuating serious human rights shortcomings. Continue reading >>
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26 February 2024
Rethinking the Law and Politics of Migration
2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. What is the role of legal scholarship and discourse at a time where governments seem increasingly comfortable to eschew many long-standing legal rules and norms, often with majority support? Continue reading >>
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14 February 2024
Teaching Human Rights in Russian Legal Education
The growing mistrust towards the West in Russia since the early 2000s, as well as general disillusionment with the results of political transition and economic reforms, along with the aggressive anti-human rights propaganda of the Russian regime for a long time, has led to a perception of human rights as a "Western theory" that does not fit the Russian people. This context made it easy in the 2010s to weaponize human rights in the Kremlin’s foreign policy rhetoric and subsequent direct aggression; the rhetoric of "protecting human rights" became the justification for both the annexation of Crimea and the initiation of full-scale aggression against Ukraine. Continue reading >>
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19 November 2023
Undermining the Energy Transition
Australia is confronted with three multi-billion dollar investment treaty claims from a mining company. The basis for two of the claims is a judgment from the Queensland Land Court, in which the court recommended that no mining lease and environmental authority should be granted to a subsidiary of the claimant for its coal mine. The investment treaty arbitration serves as another illustration of how the international investment protection system poses a threat to an urgent and just energy transition. In this blog post, I explain the background of the investment treaty claim, the decision of the Queensland Land Court, and argue that the Court’s decision is an important precedent for the connection between coal, climate change, and human rights. Continue reading >>
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13 October 2023
A Hidden Success
Following the EU General Court’s dismissal of the complaint of WS and other asylum seekers against Frontex in its ruling on September 6, 2023, scholarly commentary has largely expressed disappointment. However, a more optimistic way of reading the judgement is also possible. By declaring the lawsuit admissible, the court confirmed that factual misconduct by Frontex can be addressed with action for damages claims – and this in itself is a major step forward in the system of fundamental rights protection in the European Union. Continue reading >>
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01 October 2023
Europe’s Faustian Bargain
On Thursday, news broke that the German government had agreed to incorporating the previously rejected Crisis Regulation into the EU’s new asylum and migration pact. The decision was a radical change of course since Germany had previously consistently opposed its inclusion. Framed as allowing for more ‘flexibility’ in case of migratory surges, the Crisis Regulation’s adoption will, in effect, suspend the EU asylum system as we know it for the time being, given that recorded sea arrivals are currently nearing the 2015 levels. A crisis in need of regulation, if you will. In this blogpost, I highlight the dangerous fallacy that underpins our tolerance for the illegality that has come to characterize contemporary border control. In particular, our failure to oppose the constant expansion of the limits of the law that occurs in the name of crisis and political necessity rests on the mistaken assumption that we have nothing to lose in this race to the bottom. Continue reading >>28 September 2023
Act Three for Climate Litigation in Strasbourg
Yesterday, on 27 September 2023, a historic hearing took place before the Grand Chamber of the European Court of Human Rights. The Court heard the Duarte Agostinho case, brought by six Portuguese children and young people against a whopping 33 Member States of the Council of Europe. Having heard two other climate cases this past March (the KlimaSeniorinnen v. Switzerland and Carême v. France cases, respectively), this was the Court’s final hearing before it issues its first-ever findings on climate change. It was also the Court’s first youth climate case. For several reasons, yesterday’s hearing was a historic one: Duarte Agostinho is the Grand Chamber’s biggest-yet climate case, both in terms of the substantive rights invoked and the number of States involved. Continue reading >>
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23 September 2023
Be Careful What You Wish For
The European Court of Human Rights has issued some troubling statements on how it imagines content moderation. In May, the Court stated in Sanchez that “there can be little doubt that a minimum degree of subsequent moderation or automatic filtering would be desirable in order to identify clearly unlawful comments as quickly as possible”. Recently, it reiterated this position. This shows not only a surprising lack of knowledge on the controversial discussions surrounding the use of filter systems (in fact, there’s quite a lot of doubt), but also an uncritical and alarming approach towards AI based decision-making in complex human issues. Continue reading >>
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09 September 2023